On Thursday, after the announcement was made that the Supreme Court had ruled 5-4 in favor of religious liberty and against New York Governor Andrew Cuomo’s severe restrictions targeting religious organizations, with Justice Amy Coney Barrett joining the majority, critics on the left expressed their anger by nicknaming her “Amy Covid Barrett.”
Impeach Amy Covid Barrett
— Deren Ney (@DerenNey) November 26, 2020
I promise I will call her Amy Covid Barrett for the rest of her unqualified zealot hack judge life.
— Randi Mayem Singer (@rmayemsinger) November 26, 2020
I want to laugh that Amy Covid Barrett is trending but can’t stop thinking of the thousands and thousands more deaths she just handed us.
— Q. Allan Brocka (@allanbrocka) November 26, 2020
Amy Covid Barrett makes her activist judge debut https://t.co/bm7Hozs3qy
— Joshua Ostroff (@joshuaostroff) November 26, 2020
Two similar cases had come before the court when Justice Ruth Bader Ginsburg, Barrett’s predecessor, served on the Court; the Court had ruled 5-4 in both decisions in favor of the governors imposing the restrictions, not in favor of the religious organizations. In May and July, the Court had ruled on restrictions placed on churches in California and Nevada.
In the two previous decisions, justices in the minority had written strong dissents. In South Bay United Pentacostal Church v. Gavin Newsom, Chief Justice John Roberts, writing for the majority, wrote in May, “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.”
Justice Brett Kavanaugh wrote in his dissent:
I would grant the Church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment. In response to the COVID–19 health crisis, California has now limited attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower. The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.
He added, “In my view, California’s discrimination against religious worship services contravenes the Constitution. … What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap. California has not shown such a justification.”
In July, in Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, Justice Samuel Alito dissented, writing for the minority:
The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities. Claiming virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic, he has issued a directive that severely limits attendance at religious services.
A church, synagogue, or mosque, regardless of its size, may not admit more than 50 persons, but casinos and certain other favored facilities may admit 50% of their maximum occupancy— and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed. That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.
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